Frontline dives into the Heritage Foundation Database:
eila and Gary Blake didn’t want to miss elk hunting season.
It was 2000, and the election conflicted with their plans, so the Wyoming couple requested absentee ballots.
But the Blakes had moved from 372 Curtis Street five miles down the road to 1372 Curtis Street, crossing a town line. When they mailed their votes using the old address, they were criminally charged. The misdemeanor case was settled with $700 in fines and a few months’ probation, but two decades later, the Blakes are still listed as absentee ballot fraudsters in the Heritage Foundation’s Election Fraud Database.
Far from being proof of organized, large-scale vote-by-mail fraud, the Heritage database presents misleading and incomplete information that overstates the number of alleged fraud instances and includes cases where no crime was committed, an investigation by USA TODAY, Columbia Journalism Investigations and the PBS series FRONTLINE found.
EDITOR’S NOTE: This story is part of an ongoing investigation by FRONTLINE, Columbia Journalism Investigations and USA TODAY Network reporters that examines allegations of voter disenfranchisement and how the pandemic could impact turnout. It includes the film Whose Vote Counts, premiering on PBS and online Oct. 20 at 10 p.m. EST/9 p.m. CST.
AJ Vicens for Mother Jones:
Perhaps nowhere worries experts more than Pennsylvania. As a perennial presidential battleground, its 20 electoral college votes—decided by just 44,292 votes in 2016—always attract the spotlight. But this year, the state is grappling with a number of unprecedented conditions and challenges that could complicate the smooth administration of November’s election, including a recent overhaul of state election law predating the pandemic, continuing fights over changes to voting prompted by the coronavirus, and a growing sense that President Donald Trump’s campaign and supporters will ignore democratic norms to ensure victory in a state that he must win. It’s a brew that in a close election could send the state in the direction of high stakes, drawn out, and hard fought post-election challenges that could determine the fate of the nation.
“If the election comes down to electoral college votes in Pennsylvania, I think it’s going to be hell,” says Rick Hasen, a [UC Irvine] law professor and expert on election administration and voting rights. “That’s one of the worst possible outcomes.”
For Hasen, the state’s inexperience with mail ballots is a key concern. In 2019, Pennsylvania’s Republican controlled legislature passed a bill with largely bipartisan support that allowed voters, as part of a growing national trend, to cast ballots by mail under any circumstance. This fall’s general election would have been the first conducted under the new rules, but no one expected a pandemic would push an unforeseeable number of the state’s 8.8 million voters to opt for mail balloting. The flood could swamp little-tested mailing, handling, and processing procedures. Already, issues are flaring up: On October 14, election officials in Allegheny County, home to Pittsburgh, announced that nearly 29,000 ballots went to voters with the wrong contests, a mistake noticed by attentive voters. Officials intervened to prevent another 19,000 faulty ballots from being sent, and have pledged to re-issue correct ballots.
Adding to Hasen’s worries is a state law that bans substantial processing of mail ballots until Election Day. The provision is almost certain to result in a delay between the release of results collected at in-person polling places and those that came by mail ballots, hindering the quick designation of a clear winner. Trump supporters have outlined plans to exploit the delay. Last week, the Associated Press reported that Trump allies think “their best bet” at holding the White House is to “hope results look close on election night, before some of the mail-in ballots are counted, allowing Trump to declare victory and have the results thrown to the courts.”
Here, the strength of the final three factors of the stay analysis outweigh any probability of defendants’ success on the merits. Partly from defendants’ own doing, the electoral calendar works against their request for a stay of the district court’s preliminary injunction. The district court issued its preliminary injunction on September 9, 2020. While that timing may have been out of defendants’ control, defendants did not file their appeal of the preliminary injunction until October 5, 2020, nearly one month after the injunction sprang into effect. And they did not seek a stay of the district court’s order until October 9, 2020. Plaintiffs’ response to the stay motion was filed October 15, 2020.
During the period between September 9, the day of issuance of the preliminary injunction, and October 15, the day plaintiffs’ response was filed, both absentee voting and early in-person voting had begun in Tennessee. Plaintiffs have been working in their communities to inform their members and the general public about the district court’s preliminary injunction; collectively, they have spoken to over 1,500 voters at union meetings, virtual town halls, and voter-registration events. On Tennessee’s official government webpage about absentee voting, the defendants themselves prominently state that “[p]ursuant to the September 9, 2020 Order of the U.S. District Court, first-time voters are not required to vote in-person if they meet a legal reason to vote by-mail.” Absentee Voting, Tenn. Sec’y of State, https://sos.tn.gov/products/elections/absentee-voting (last accessed Oct. 17, 2020).
Given this situation, the injury to potential voters, who have relied on communications from defendants and local election officials, is great. Moreover, disrupting the new rules at this point poses significant risk of harm to the public interest in orderly elections. In this instance, there is no substantial harm to defendants in continuing to comply with rules they are currently following.
This is the same panel that divided sharply in another Tennessee voting emergency case.
The equities in this case and how the very conservative judges voted in the most recent case says something significant about reliance. This is why last night on Twitter I suggested that it seems unlikely the U.S. Supreme Court, after not granting a stay on the acceptance of absentee ballots received up to three days after the election without a postmark in Pennsylvania, would turn around after the election with a Justice Barrett and say that those ballots now could not be counted. The reliance interests are tremendous.
And:
Event today at USC:
The 2020 Presidential Election is unprecedented in many ways: Record numbers of mail-in ballots. Potentially epic post-election legal battles. Voter preferences for in-person voting that fall starkly along party lines. These are just a few of the possible post-election events that the media must be prepared to navigate as it reports on an Election Night that could stretch well past November 3. Join the USC Annenberg Center on Communication Leadership and Policy and the USC Center for the Political Future for a conversation exploring how the media can accurately and fairly cover the results on Election Night and beyond. Our panelists will discuss the role of the press in setting realistic expectations for the American public, preventing the spread of misinformation, and maintaining trust in our democratic institutions. CCLP Director Geoffrey Cowan will facilitate a conversation with the following panelists:
- Sara Fischer, Axios Media Trends Editor
- Adam Clayton Powell III, Executive Director of the Election Security and Information Project
- Bob Shrum, CPF Director
- Jessica Yellin, former Chief White House Correspondent for CNN
The following is a guest post from Neel U. Sukhatme, Associate Professor, Georgetown University Law Center, and Co-Founder, Free Our Vote:
As readers of this blog might know, nearly 65% of voters in Florida supported a ballot initiative in 2018 to restore voting rights for most former felons in the state. Unfortunately, the state legislature and governor subsequently enacted SB 7066, which removed voting rights for hundreds of thousands of former felons who still owe fines, fees, court costs or restitution associated with their sentencing. Subsequent legal challenges to SB 7066 ultimately failed.
There are many legal and ethical problems stemming from this suppression of voting rights. But a more basic problem is pragmatic: most former felons cannot even find out how much they owe in fines/fees because Florida does not maintain a centralized database that tracks this information.
My colleague, Alexander Billy, and I were troubled by this. So we founded Free Our Vote, a non-partisan, non-profit organization comprised of data scientists, economists, and legal researchers that seeks to restore voting rights for former felons. Leveraging our past experience with Florida data, Free Our Vote has collected accurate fines/fees information for over 425,000 Floridians across 24 counties that comprise over 85% of the state’s population.
The data we’ve gathered has enabled us to launch a multi-media information campaign with our partners, the Campaign Legal Center and Florida Rights Restoration Coalition. Together, we have informed tens of thousands of former felons who owe nothing that they should be able to participate in the November election. Free Our Vote’s data-centered approach has also helped us support the Florida Rights Restoration Coalition in strategically allocating repayment of fines/fees to maximize the number of people whose voting rights are restored.
Separately, Free Our Vote is partnering with Robert F. Kennedy Human Rights, a 501(c)(3) tax-deductible organization, to pay off fines/fees for Floridians with felony records. Though the support of generous donors, we will have repaid more than $50,000 in fines/fees across multiple counties, enabling Free Our Vote to restore voting rights for well over 1,000 former felons. Free Our Vote’s efforts on this front will continue up through Election Day.
Sadly, the shadow of fines/fees will continue to impact thousands more past November 3, limiting their ability to obtain a driver’s license, let alone cast a ballot. Free Our Vote will continue to work on this issue, leveraging the rich data we’ve collected and working with partners such as the Fines and Fees Justice Center to inform policymakers and redress these shortcomings in the criminal justice system.
New Josh Douglas at CNN.
I have written this piece for Slate. It begins:
After a very long delay in an emergency election case, the shorthanded United States Supreme Court came to a 4-4 tie in an election law case out of Pennsylvania on Monday evening. While a tie result that leaves the lower court ruling standing is a clear short-term win for Democrats in making it easier to vote in the Keystone State in November, Republicans could end up with a much bigger victory if there is any post-election Trump v. Biden litigation. If Amy Coney Barrett joins the Court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures….
This 4-4 tie is doubly troubling. First, it means that we have no guidance from the Court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election. Even though Democrats opposed the stay sought by Republicans in the case, they begged the Court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states—North Carolina and Pennsylvania—with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.
Further, it shows that President Trump was right about the role that Judge Amy Coney Barrett could play in any post-election litigation over the winner of the November election. He has said he wants Barrett on the Supreme Court to decide such a case. I earlier expressed skepticism that Barrett would act as a tie-breaker in such circumstances, reasoning that Chief Justice Roberts would not want to put her in this position. But I’ve now reconsidered. Judge Barrett is a deeply conservative judge, much like Justices Alito, Gorsuch, Kavanaugh, and Thomas who voted Monday to grant a stay. She easily could have been a fifth vote hear to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution.
If you thought the stakes of a Barrett confirmation couldn’t get any higher, they just did.
If President Trump does end up losing reelection, one big area that will be ripe for an autopsy is the role that Fox News played in making that happen.
A mammoth new poll from the Public Religion Research Institute helps underscore another way this may prove to be the case. It finds that Republicans who place great trust in Fox News say in truly overwhelming percentages that they are “not at all” confident that vote-by-mail will be secure against fraud.
This is precisely an outcome that Republican strategists worried about. Last spring, when Trump was pushing false and unsubstantiated claims about fraud in vote-by-mail particularly hard, Republicans loudly voiced their fears this would put them at a disadvantage in key swing states.
Those Republicans noted that Democrats were likely to request absentee ballots in far higher numbers. And they fretted that less committed GOP voters who were dissuaded from voting by mail might not turn out on Election Day, needlessly costing Republicans a way to lock down their votes.
Dahlia Lithwick and I have written this piece for Slate. It begins:
Nobody, aside perhaps from Judge Amy Coney Barrett, could have missed the implication of Sen. Amy Klobuchar’s line of questions Wednesday about Barrett’s service in the army of GOP lawyers who flew down to Florida to make certain that ballots were counted for George W. Bush in the 2000 election dispute that culminated in Bush v. Gore. If Barrett is confirmed, the Supreme Court will have three justices who worked on behalf of the GOP on the 2000 litigation that resulted in George W. Bush winning that year’s presidential election. Barrett, who testified that she couldn’t recall anymore what work she did for the campaign, joins Chief Justice John Roberts and Justice Brett Kavanaugh as three of the luckiest election lawyers in history, a fact Barrett dismissed in her testimony as an unremarkable coincidence.
It’s not just that court will now feature three former Bush v. Gore lawyers—it’s that it will feature three former *Bush* lawyers. But this isn’t just a story about how the Federalist Society rewards its own loyalists. It’s also an urgent story about a side project of Federalist Society leaders and allies working to assist an effort at voter suppression, while simultaneously working both to manipulate voting rules and stack the judiciary to push a Trump victory and solidify Republican control of government….
This is where it all ties together: the lawyers who are popping up around the country demanding, under the false flag of “vote fraud,” that voter rolls be purged and voting in a pandemic become more deadly, are coordinated by the same people, and with the same unknown funding that has put more than 200 conservatives judges into lifetime positions on the federal courts. As we concluded in May, all this is a far cry from the “debate club” the Federalist Society has long claimed to be (and still claimed to be at the Barrett hearings)…
There’s one more way in which the ghost of Bush v Gore, the long shadow of the Brooks Brothers revolt, and the specter of outright vote suppression loom large over the upcoming election and whatever litigation may follow. The unsigned 5–4 decision in Bush v. Gore was widely understood to be a “good for one ride only” holding that would have no precedential force in any future case. (The Supreme Court itself has never cited the case in the intervening decades except in a concurring opinion by Justice Clarence Thomas on a tangential point.)
But the cherry on top is that it’s now being dusted off by Trump’s legal team for a reprise in the 2020 election. As Joan Biskupic has explained, Trump’s legal teams have begun to cite the equal protection rationale that supported Bush v. Gore in legal challenges around the country, somehow claiming that the case, which was supposed to have no value, now invalidates state procedures for balloting by mail, because they lack in uniformity in violation of constitutional equal protection. Justice Antonin Scalia signed onto that equal protection decision holding his nose, reportedly calling it, “as we say in Brooklyn, a piece of shit.”
Voters whose absentee ballots have problems with their envelopes can now expect contact from board of elections offices in order to fix their ballots by Election Day.
And less than 24 hours after North Carolina added new guidelines on handling those problems, the N.C. Court of Appeals ruled that ballots could be collected through Nov. 12 if they were postmarked by 5 p.m. Nov. 3, Election Day.
Ten thousand ballots had problems but were caught in the crossfire of three lawsuits pending in both state and federal court and voters could not be contacted until the conclusion of those lawsuits that are now before the N.C. Court of Appeals.
But on Sunday, the N.C. State Board of Elections issued the new guidance to county boards that allowed for voters to be contacted in order to fix their ballots before Election Day.
Senate Leader Phil Berger’s office provided The News & Observer a letter written by Ryan Park, solicitor general for the N.C. Attorney General’s office, to the N.C. Court of Appeals. Park wrote in the letter that Berger and House Speaker Tim Moore agreed that new guidance can be given to the county boards that they may now contact voters who need to fix their ballots.
This is terrible and these boxes are designed to make this difficult to do.
People interfering with ballots like this can face felony charges.
New Ned Foley at WaPo.
I reached similar conclusions on the need for a constitutional amendment in my Three Pathologies piece.
You can find the opinion by Judge Smith (along with a concurrence by Judge Higgenbotham at this link.
This case is a nice illustration of the dangers of bringing these suits seeking federal court orders easing voting during a pandemic. Not only do such suits face a greater chance of reversal as they work their way up the increasingly conservative appellate food chain. They run the risk of getting really bad voting rights precedent on the books. In this case, the opinion by Judge Jerry Smith will have very bad implications across a host of voting rights cases (and not just on this particular issue). The discussion of voter fraud is especially troublesome.
Update: Sam Levine points out that the case was filed in 2019, so it doesn’t fit directly into pandemic litigation. Still, the general point stands.
I have written this piece for CNN. It begins:
What will the United States and the world wake up to on November 4, 2020, the day after Election Day? And could the US endure a close election in which Joe Biden is declared the winner but President Donald J. Trump refuses to concede?
Given current polling of the presidential race, it is possible to imagine three scenarios, either on November 4 or on days soon thereafter: a narrow Trump victory in the Electoral College, with a huge loss in the popular vote; a Biden landslide in which Trump claims he lost because of a “rigged” election; or a very close and potentially flawed election going into overtime that could lead to a prolonged struggle over the presidency and the country. Each of these presents its own set of challenges for American democracy….
If Trump loses by up to 5 million votes in the popular vote, as he could well do, and he remains in office thanks to an Electoral College victory after a divisive first term, it would vindicate his strategy of catering to a fervent white, rural and older base of voters while spurning a more multi-cultural and eclectic American majority. The American left would view such a narrow victory as the product of political manipulation, especially after Republicans over the last two decades played hardball on gerrymandering and restrictive voting laws. But if history is any indication Democrats are unlikely to do more than loudly complain unless there is evidence that Trump engaged in actual electoral tampering to ensure his victory.
A Biden landslide in both the popular vote and the electoral college, which seems plausible given current polling, would raise its own set of challenges. It is hard to imagine Trump accepting a loss with grace and giving a magnanimous concession speech wishing Biden and the country well. The best-case scenario under this potential outcome is that Trump grumbles on his way out, ready to rebuild his business empire and perhaps start Trump TV while a number of lawsuits and investigations play out.
Should Trump decide not to go quietly following a Biden landslide, there’s good reason to believe that American institutions as well as Republican election leaders would accept his defeat and refuse to allow him to make an authoritarian power play. Trump has tested American norms since his candidacy in 2016, and has on multiple occasions refused to commit to a peaceful transition of power….
But what if it is close? This is the scenario that keeps me up at night. The race could come down to Pennsylvania or Michigan, two battleground states with a history of poor election administration in big cities including Philadelphia and Detroit.
If the race is close, Trump and his campaign could file lawsuits and use evidence of election administrator incompetence to convince key segments of the American right that Democrats stole the election through deliberate fraud. Trump has already sowed distrust in the results by saying without evidence that the only way he loses is if the election is “rigged.”
I am most worried about a race that is too close to call — especially in states struggling to count a torrent of mail-in ballots, such as Pennsylvania, whose legislators so far have refused to give election officials a head start as they do in other states like Florida to process absentee votes.
Early voting turnout continues to shatter records, as sky-high voter enthusiasm meets the realities of the United States’ creaky machinery of democracy amid a pandemic. That means long lines in some places and administrative errors with some mail ballots, but a system that is working overall, according to experts.
“Despite some of those concerns, things are going at this point reasonably well,” said former Deputy Postmaster General Ronald Stroman, speaking specifically about the expansion of voting by mail.
More than 26 million people had voted as of Saturday, according to the U.S. Elections Project, a turnout-tracking database run by University of Florida political scientist Michael McDonald. That’s more than six times the number of votes cast by the same point in 2016.
While there are still more than two weeks to go before Election Day, here are some takeaways from the votes that have already been cast.
CNN:
Democratic sources say that they are taking the President at his word. The Biden campaign is preparing for any number of legal contingencies that could arise if the vote is close, while lawmakers are preparing for plausible — and also quite implausible — scenarios that could arise if the presidential election were kicked to Congress to decide a winner. Democrats are also readying a response to Trump’s claims of fraud — which could cause his voters to doubt the legitimacy of the result, even if it’s a Biden landslide — with plans underway for nationwide protests should Trump try to dispute the result. They’re also working with social media companies to try to discourage a premature declaration of victory on election night.
Senate Minority Leader Chuck Schumer and Senate Democrats released a report on Sunday titled, “Counting Votes & What to Expect on Election Day,” aimed at preemptively pushing back on Trump’s claims of fraud, which details how not all states are likely to finish counting their votes on November 3.”
Despite the President’s false claims, according to the leading election experts in our country, voter fraud is nearly nonexistent,” the report says. “In some states, we may not know the winner on Election Night. That’s OK.”
Elections officials in Pennsylvania are being inundated with complaints from first-time and absentee voters having difficulty registering to vote or requesting a mail ballot, fueling anxiety in the critical swing state just as the 5 p.m. Monday deadline approaches to join the voting rolls in time for the November election.
College students in at least three counties in Pennsylvania who attempted to register to vote online had their applications rejected, and were notified that they must provide documentation in person or by mail to meet the Monday deadline, raising concerns among voting-rights advocates that an unknown number of students may not be able to register in time.
Meanwhile, other voters are receiving rejection notices for their absentee ballot requests without a clear explanation. County officials said the vast majority of these rejections were due to a technical problem: The voters had already requested a general-election ballot when they were applying to vote by mail for the primary election, so they didn’t need to request one again for the fall.
In Georgia, the state’s voting machines have malfunctioned in three consecutive elections this year alone.
In Pennsylvania, election officials are staring down possibly the biggest ballot processing backlog in the country, with no means of even touching the ballots until polls open on Election Day.
And in North Carolina, thousands of submitted absentee ballots are currently in purgatory, neither rejected nor accepted but “under review,” amid a back-and-forth court battle over so-called ballot curing.
Short on money, overworked and under enormous pressure, many battleground states are still in the process of standing up their electoral systems, a building-a-plane-midflight reality for a democratic process that is being challenged daily by court cases, new laws and surges in the coronavirus….
Few states are still facing more litigation-driven uncertainty than Pennsylvania.
The state has had its plans to install drop boxes hung up in the courts for months; the question of whether it will be able to accept ballots that arrive after Election Day has been similarly stalled. The state legislature still hasn’t decided on allowing election officials to begin processing ballots early. And Kathy Boockvar, the secretary of state, is still awaiting guidance from the state Supreme Court as to whether election officials have to perform signature matching checks on absentee ballots.
“Pennsylvania is the one everyone is worried about,” said Charles Stewart III, a professor of political science at M.I.T. who runs the university’s Election Data and Science Lab.
While all of this uncertainty might seemingly depress enthusiasm for mail ballots, Pennsylvania voters are still requesting them at a record clip. More than 2.7 million ballots have been requested, and about 683,000 have been returned. Yet at the moment, election officials in the state’s 67 counties cannot touch the ballots until Election Day, raising the likelihood that full results will not be known for days.
By law, Pennsylvania does not offer any form of in-person early voting. But Ms. Boockvar has worked with county officials to set up satellite elections offices where voters can come and vote by absentee ballot in person (as in, request a ballot in person, receive it, fill it out there and then drop it off). The offices are intended to expand voting options and help decrease an expected surge on Election Day. But so far, only five of the state’s 67 counties — Philadelphia, Centre, Chester, Delaware and Montgomery — have set up offices.
Ellen Weintraub NYT oped:
Among many other recent developments not likely on anyone’s 2020 bingo card, a Supreme Court decision about foreign aid and legalized prostitution has shattered perceived constraints on the authority of the United States to robustly defend its elections against foreign interference.
This summer, in U.S. Agency for International Development v. Alliance for Open Society Internatonal, Inc., the Supreme Court, in a 5-to-4 decision, with the majority opinion written by Justice Brett Kavanaugh, ruled that the U.S. government can compel overseas public health organizations that receive U.S. foreign aid to publicly oppose prostitution.
Yet Justice Kavanaugh’s decree — that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution” — is so expansive that it spills into election law, giving federal and state governments ample authority to defend us against the full range of foreign political warfare, without fear of violating the First Amendment.
By almost every measure that political operatives, academics and handicappers use to forecast elections, the likely outcome is that Joe Biden will win the White House.
Yet two weeks before Election Day, the unfolding reality of 2020 is that it’s harder than ever to be sure. And Democrats are scrambling to account for the hidden variables that could still sink their nominee — or what you might call the known unknowns.
Republican registration has ticked up in key states at the same time Democratic field operations were in hibernation. Democratic turnout is surging in the early vote. But it’s unclear whether it will be enough to overcome an expected rush of ballots that Republicans, leerier of mail voting, will cast in person on Nov. 3.
There is uncertainty about the accuracy of polling in certain swing states, the efficacy of GOP voter suppression efforts and even the number of mail-in ballots that for one reason or another will be disqualified.
Vivian Schiller and Garrett Graff for CJR.
The latest from the Civics Center.
As we approach the final weeks of the election campaign, Secretaries of State – particularly in swing states – face tremendous pressures as they fulfill their responsibilities to provide a smooth, inclusive, and safe election that delivers a trusted result. The Ash Center for Democratic Governance and Innovation is privileged to bring together a bipartisan group of secretaries from the key swing states of Michigan, Ohio, and Pennsylvania. They will discuss the challenges they are facing, the pressures they are under, and what they are doing to make the November elections work for the citizens of their states.
This event is co-sponsored by the Institute of Politics at Harvard Kennedy School.
Speakers include:
Jocelyn Benson, Secretary of State, Michigan
Kathy Boockvar, Secretary of the Commonwealth, Pennsylvania
Frank LaRose, Secretary of State, Ohio
Miles Rapoport (Moderator), Senior Practice Fellow in American Democracy, Ash Center
Steven Sholk:
I am pleased to announce that an updated version of my article, A Guide to Election Year Activities of Section 501(c)(3) Organizations, has been published by Practising Law Institute as part of its 2020 Course Handbook for the seminar, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings.
You can find it here.
The Supreme Court has taken an exceptionally long time – given the impending election — to address the legal challenges before it involving voting issues in Pennsylvania. Given that length of time, it’s reasonable to assume we are going to get a substantial opinion from the Court, which will likely include dissenting opinions as well. The opinions could well address one of the most important unresolved constitutional issues concerning state regulation of presidential elections and maybe national elections more generally. The ramifications of the Court doing so would go well beyond PA and well beyond this election as well.
Two principal issues are before the Court, as it reviews the decision from the PA supreme court. The first issue, a minor one, is whether the state court decision permits absentee ballots to be cast after Election Day and, if so, whether that would violate federal statutes that require the election to take place on Election Day. If that’s all the Court addresses, the decision would be of minimal legal and practical significance.
But given the length of time this case has been pending – the initial application for a stay was filed on Sept. 28th – it is reasonable to assume the Court is addressing the much bigger question. That issue is what the meaning of the term “legislature” is in the Constitution. More specifically, the question is the meaning of that term for purposes of the Elections Clause in Art. I — which applies to state regulation of national elections in general — and the Art. II provision that governs the Electoral College and the presidential elections process in particular.
The more immediate stakes in this issue focus on whether the PA supreme court violated the Constitution in ordering that absentee ballots be treated as valid votes even if received up to three days after Election Day. In PA, the Elections Code, enacted through the normal lawmaking process, requires that absentees must be received by 8 pm on Election Night to be valid. Around 40 states similarly require valid absentees to be received on or before Election Night, though some states permit later receipt. Based on the state constitution, the PA supreme court held that this three-day extension was required, in order to protect the right to vote, given potential delays in mail service.
If the Court holds that the PA court decision was itself unconstitutional, that would mean that courts – both state and federal – would not have the power to order extensions of these receipt deadlines. That could be consequential for this election, particularly in PA; it would also mean that any court decisions still intact that have extended these deadlines could now be challenged and possibly reversed. But by now, there are not many court decisions still in place that have ordered extension of these deadlines. Most decisions by lower courts, state or federal, that have done so have now been reversed on appeal.
Much more importantly, though, is the path by which the Court would have to get to this result. The term “legislature” appears in the Constitution seventeen times. And a major constitutional issue centers around whether that term is best understood to mean (1) the ordinary lawmaking processes of a state, as established by the state constitution, or whether it should mean only (2) the formal institution of the legislature itself. Put less legalistically, the issue is whether in regulating the presidential election process or national elections more generally, the state legislatures have exclusive powers that cannot be significantly constrained by the ordinary constraints on state lawmaking – such as the state constitution or the requirement that that the Governor be given an opportunity to veto proposed laws.
To hold that the PA court violated the Constitution, the Court would have to hold that “legislature” means the formal institution itself. That would mean the state constitution cannot control the substantive policy choices the legislature makes about the rules governing presidential elections (and perhaps all national elections, as well). The state legislatures would still be bound by the federal Constitution, of course, so that they could not enact rules that would violate the Fourteenth or Fifteenth Amendments, for example. But within the state, the legislature would have plenary and exclusive control over the ground-rules for presidential elections.
The ramifications of that ruling would spread far and wide. For one, would this mean that Governors would no longer be able to exercise vetoes over the “legislature’s” regulation of the presidential election process? That would, of course, be a profound change. Second, to what extent are various state constitutional provisions still binding on the legislature when it regulates the presidential election process – in other words, what would the boundaries be on the kind of rules the state constitution can or cannot impose on the legislature? As an example, suppose a state constitution requires ten days of early voting in presidential elections; if the legislature wants to have more or fewer days, would the Constitution now mean that the state legislature is free to decide for itself on matters like this, regardless of the state constitution?
Another major question would be whether the implication would be that the term “legislature” would mean only the institution itself all seventeen times it is used in the Constitution. The Court’s decision might expressly address only the “legislature’s” power over presidential elections, under Art. II. But what would the decision imply about the state “legislature’s” power to regulate all national elections, under the Art. I Elections Clause?
Three options exist here: (1) the term “legislature” always means simply the institution itself; (2) the word legislature always means the ordinary lawmaking processes of the state; (3) “legislature” sometimes means the institution and sometimes means the ordinary lawmaking processes of a state. As an example of how that third possibility might come about, the Court could hold that Art. II, on the presidential election process, is a special provision that was specifically designed to give the legislatures exclusive control over this essential process. But if we think the Court has a textualist majority, it is not hard to imagine textualists concluding that “legislature” must have the same meaning each time it appears in the Constitution.
Yet another question would immediately be what implications this has for the Court’s recent 5-4 decision upholding the right of voters, through the initiative process, to bypass the legislature and adopt independent commissions, or commissions of other designs, to do redistricting. That decision, in Arizona State Legislature v. Arizona Independent Redistricting Commission – the title tells you exactly what’s going on in the case – held that “legislature” in the Elections Clause means the ordinary lawmaking processes of a state. As a result, if a state permits voter initiatives to regulate the national election process, that does not intrude, based on the AIRC decision, on any purportedly exclusive powers of the state legislature. But the decision provoked a vehement 4-Justice dissent, written by Chief Justice Roberts.
If the Court holds that the PA court has violated the federal constitution, that would certainly create obvious tensions with the AIRC decision. The Court is unlikely to say anything about the continuing validity of that decision. And it’s possible in later cases, the Court might conclude that, even if AIRC is in tension with the (forthcoming) PA decision, that the Court will respect the precedent of that decision, but will not extend it further to new contexts. But however the Court ultimately resolves the continuing validity of AIRC, there would certainly at least be tension between that decision and the PA decision that will, eventually, have to be resolved.
On top of all this, the Court would likely have to say something about the notoriously uncertain Purcell principle. Other than as a general admonition to courts to be wary of making last-minute changes to election laws, Purcell does not lay out clearly which types of last-minute changes courts can properly make and which not. If the Court overturns the PA supreme court decision here, the Court will have to provide a bit more clarity about Purcell and why it does not stand in the way here of the Court’s decision [Update: As I discussed earlier on this blog, the Purcell doctrine does not technically apply to decisions of state courts, so the Court might not feel an obligation to say anything about the doctrine]
Finally, a holding that “legislature” means only the formal institution would put the federal courts in the position of having to adjudicate a vast array of election-law issues previously thought to be solely within the purview of state law. That would be all the more true if the decision implies that “legislature” means only the institution for purposes not just of presidential elections, but state regulation of all national elections. Each time a state court interprets state law on these matters, the ruling would be easily transformed into one that implicates federal constitutional law. The losing side will always pursue the argument that the state court interpretation unconstitutionally interferes with “the legislature’s” exclusive power. Similarly, rulings of state executive officials on election law, such as from the Secretary of State, could easily be transformed into federal constitutional ones, for the same reason. The federal courts might eventually conclude that “reasonable” interpretations of the election code do not violate “the legislature’s” exclusive power – but that would put the federal courts in the position of judging, case by case, whether the actions of state courts or executive officials regarding state election law, for national elections, is indeed reasonable.
This essay just begins to unpack the range of questions that will arise should the Court hold that the PA supreme court violated the U.S. Constitution. That decision would be a blockbuster one, whose implications the federal courts would spend years sorting out.
We should find out any day now whether, in fact, that’s why the PA case has been pending so long.
Pam Fessler reports for NPR.
WaPo:
Two weeks before Election Day, Black Americans have voted in striking numbers, helping drive historic levels of early voting as mail ballots have flooded election offices and people have endured huge lines to cast ballots in person across the country.
In interviews in 10 states where early voting is underway, Black voters said this year’s presidential election is the most important of their lifetime — some calling it more consequential even than 2008, when those who were old enough went to the polls in record numbers to make Barack Obama the country’s first Black president.
They spoke of a sense of urgency to protect the nation’s democracy, and their role in it, which they believe a second Trump term would erode beyond repair. Many said they view the president as a racist who cannot bring himself to disavow white supremacists or the year’s spate of police killings of unarmed Black Americans, and they believe the country is less safe for themselves and their families.
Over and over again, Black Americans described their vote this year as much more than a choice between two presidential candidates, but as an urgent stand in the long fight against racial injustice in America, which the year’s events have made clear is not yet over.
NYT:
The instructions were clear: Write an article calling out Sara Gideon, a Democrat running for a hotly contested U.S. Senate seat in Maine, as a hypocrite.
Angela Underwood, a freelance reporter in upstate New York, took the $22 assignment over email. She contacted the spokesman for Senator Susan Collins, the Republican opponent, and wrote an article on his accusations that Ms. Gideon was two-faced for criticizing shadowy political groups and then accepting their help.
The short article was published on Maine Business Daily, a seemingly run-of-the-mill news website, under the headline “Sen. Collins camp says House Speaker Gideon’s actions are hypocritical.” It extensively quoted Ms. Collins’s spokesman but had no comment from Ms. Gideon’s campaign.
Then Ms. Underwood received another email: The “client” who had ordered up the article, her editor said, wanted it to add more detail.
The client, according to emails and the editing history reviewed by The New York Times, was a Republican operative.
Maine Business Daily is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.
The sites appear as ordinary local-news outlets, with names like Des Moines Sun, Ann Arbor Times and Empire State Today. They employ simple layouts and articles about local politics, community happenings and sometimes national issues, much like any local newspaper.
But behind the scenes, many of the stories are directed by political groups and corporate P.R. firms to promote a Republican candidate or a company, or to smear their rivals….
Jeanne Ives, a Republican candidate for the U.S. House in Illinois, has had a direct financial relationship with the operation.
Ms. Ives has paid Mr. Timpone’s companies $55,000 over the past three years, according to state and federal records. During that time, the Illinois sites have published overwhelmingly positive coverage of her, including running some of her news releases verbatim.
In an interview, she said her payments were to create her website and monitor her Wikipedia page. One $14,342 payment included the note “Advertising-newspaper.” Ms. Ives initially could not explain why. She later called back to say Mr. Timpone had bought Facebook ads for her.
Asked if she was paying for positive coverage, she replied: “Oh, no, there’s none of that going on. I assure you. Oh, my gosh, no. Oh, no, not at all.”
Brian Stelter and Sam Feist:
STELTER: Typically 11:00 p.m. is the earliest time — 11:00 p.m. eastern time — that an election will be called because the western states have closed their polls. Is there any chance of a projection at 11:00 p.m. on November 3?
FEIST: Yes, of course there’s a chance of a projection. It is possible and we tend to make projections early on election night if the race is not close particularly in those battleground states, so it is possible. But it is entirely possible that there won’t be a projection on election night.You know, people forget that in two of the last five elections, we have gone to bed without a president-elect. Everyone remembers 2000 where Florida was the deciding state and then it was too close to call on election night, and we didn’t know, and it took another 31 days.But the very next election was 2004, and in that case, Ohio was the state that was going to be decisive and we did not have enough votes in to project a winner on election night, so we waited. And it was midday the next day when enough results were clear in Ohio that George W. Bush won Ohio and was reelected. So, it is not unusual for elections to not be decided on Election Day, especially this year because mail-in ballots take longer to count. You have to open them, you have to process them, and so it could be that we don’t know until Wednesday or Thursday or even later. But I think the vast majority of the votes in the country will be counted by late in the election week, so I believe that we will likely know a winner. It just may not be on election night.And that’s OK. That doesn’t mean anything is wrong. The public, the media, the candidates just need to be a little bit patient.
What if a candidate prematurely declares victory?
STELTER: Right. We need to tell people to have patience. A slow count is a safe count. But you know, we don’t know what’s going to happen in terms of Florida or other key states, what’s going to happen with the turnout in those votes. What about let’s say it’s midnight or 1:00 a.m., and Donald Trump comes out and says I am the winner of the election, and our data does not back that up at all, what will CNN do?
FEIST: If we have not projected enough states for a candidate to get to 270 electoral votes, and a candidate comes out and declares victory, we will make it clear that the facts do not back up that claim of victory. And we’ll do it in a number of ways. If you’ve watched CNN’s election night, John King at the magic wall spends an awful lot of election night explaining why we haven’t projected a winner in a particular state.And he goes county by county, reveals how many votes are left to come in, how many votes have been counted, which counties have not reported much votes. This year, of course, we will layer in absentee votes throughout the night in our conversation. And if we’re not ready to project the state — we’re not ready to project the state, that doesn’t mean that anything is wrong.And we will make it clear to our viewers and our readers, that there’s simply not enough information to make a projection, and that the candidate, if a candidate goes out and declares a winner — declares victory ahead of time, that they are doing it before the votes have been counted, before — that is based in fact.
Teams of lawyers for President Donald Trump and Joe Biden got a rare look Friday at Broward voter signatures, at an event staged to clear up Republicans’ questions about election accuracy.
Lawyers for Trump’s presidential campaign had asked to periodically check signed Broward ballots to see if signatures really did match those on file, internal elections office emails and letters say. That request — which could have significantly delayed Broward’s vote-counting — was rejected.
Broward elections supervisor Pete Antonacci instead allowed a one-time look on Friday at 15 randomly selected ballot signatures, from recent mail-in ballots, as a “confidence building exercise.” Each voter’s official signature on file was copied and laid alongside the signed ballot. The matches were near clones.
Antonacci said the Republicans’ request to verify signatures came after the St. Lucie County elections office allowed ballot processing to be viewed there during the August primary.
David Daley in WaPo.
Failing to allow election officials to begin processing absentee ballots early will put undue pressure on them on Election Day. Failing to provide more time for processing these ballots also means that it is more likely that Pennsylvanians — and the entire country — will be waiting for days, if not weeks, for the winner of races here to be determined. The sad truth is that an extended period of uncertainty about election results — especially the winner of the presidential race here in Pennsylvania — will only harm the public’s trust in the sacred institutions and election processes that have made our country a beacon of freedom to the whole world.
The good news is that there is still time for legislators and the governor to get this right and help avoid unnecessary delays in tabulating the vote. Now is the time for Pennsylvania to listen to state and local election officials who are saying they need more time to process the deluge of absentee ballots they are expecting because of the COVID-19 pandemic. It would be a shame if the legislature and Gov. Tom Wolf fail to act on this critical issue before Election Day. The time to remedy this problem is now.
While we come from different parts of the United States and represent different political parties, we share a common concern about the numerous and growing threats to our republic.
We remain united around a common commitment to the American tradition of safe, secure, and legitimate elections. This is why we joined with more than 40 other political, government and civic leaders to establish the National Council on Election Integrity to defend of our elections and uphold the principle that every vote cast in accordance with applicable laws should be counted this year.
New from Larry Garber and Thessalia Merivaki of the Carter Center.
The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether the judge recognized it.
The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.
Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.
I have already explained why I believe a Justice Barrett would have to recuse in such circumstances.
Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.
One of President Trump’s most loyal propagandists is predicting that Trump will claim victory on election night as soon as he is ahead among Election Day voters. But that scenario is based on a misconception of how all ballots are counted and the early returns are compiled, according to election and legal experts.
“At 10 o’clock or 11 o’clock… on November 3, Donald J. Trump is going to walk into the Oval Office, and he may hit a tweet before he goes in there… and he’s going to sit there, having won Ohio, and being up in Pennsylvania and Florida, and he’s going to say, ‘Hey, game’s over,’” said Stephen K. Bannon, Trump’s 2016 campaign CEO and former White House adviser, during a defiant speech on October 10 forum hosted by the Young Republican Federation of Virginia.
“The elites are traumatized. They do not want to go stand in line and vote. That, ladies and gentlemen, is a game-changer,” Bannon said. “It [the decisive factor] is what electorate shows up to vote on a vote that can be certified. That’s a vote that counts. And right now, what they [Trump critics] don’t want to talk about, is Donald J. Trump leads on people who are actually going to show up and vote on November 3, by 21 percent.”
Bannon’s prediction that Trump would defy norms by asserting that he won before indisputable victory margins were reported was not just another sign that Trump would not heed the rules governing 2020’s election. Bannon’s fiery speech was a glimpse into a propagandist’s mindset that drew on smears and distortions to fan partisan ill will. But his prediction of how Trump could claim an early victory was based on a flawed premise, because no early returns on election night were only going to contain the in-person votes cast on Election Day.
“The first reports are the county totals,” said Chris Sautter, an attorney who has specialized in post-election challenges and recounts for decades. “You don’t get the breakdowns [of votes cast in different categories such as early voting, mail-in votes, Election Day votes, and overseas votes] until after election night. It depends on the state.”
Other election administration experts confirmed that the election night returns would be a mix of all of the earliest votes cast—from early in-person voting sites, from absentee ballots that had been returned and processed, and from in-person voting on Election Day. (As of October 15, more than 16 million absentee ballots had been returned or cast in early voting, the U.S. Elections Project said.)
“Right now… they’ve requested 1.5 million absentee ballots in Pennsylvania,” Bannon said. “Ten to 20 percent will not be certifiable. What that means is it [is] going to be a dogfight in those rooms [in county offices where returned ballots are processed]. Remember, every ballot that can be certified should be certified. And that ballot should count. That’s a vote. But you’ve got a lot of things that you [absentee voters] have got to check off to get to certification, because you chose—you chose—not to go to a poll.”
From the Washington Post:
It’s not Election Day that worries most county officials. It’s the next stage — the count.
This spring, in the primary, it took 10 days for the county elections office to count about 30,000 mail-in ballots. With more than 70,000 expected this time around, Erie officials have hired up, going from eight to 15 workers opening envelopes and feeding ballots into the tallying machines. They’ve added hours — counting will start each day at 7 a.m., three hours earlier than during the primary. And they’ve added machines, including a second high-speed scanner to read ballots and an automatic letter-opener that can unseal 20,000 ballots per hour, Smith said.
Each envelope takes about 90 seconds to scan and prepare for counting, work that Smith would love to do ahead of time. But a state law prohibits opening and preparing mail-in envelopes for tallying before Election Day and counting those ballots before the polls close. So far, neither lawmakers nor the courts have approved a change to the rules. [emphasis added]
All that work will take place in counting rooms jammed with people trying to oversee every move. Salmon said Republicans will deploy an army of pollwatchers, lawyers and count observers. Wertz said Democrats will do the same, with more than 200 volunteers around the county and two shifts of observers in the counting rooms.
The scene can look chaotic and crowded, but it works, Republicans and Democrats agree. “We do everything in our power to keep each vote, even if the signature is sloppy and it’s changed over 15 years,” said county councilman Shank, who acts, along with his fellow council members, as Erie’s board of elections.
Still, every day a final count is delayed could undermine trust in the outcome, many in the county say.
“The integrity of the vote is going to be questioned,” said Dillon, the open-carry activist. “It doesn’t make sense that we have to wait weeks before learning who won.”
Despite the drive to accelerate the count, “they’re so far from having the resources they need, it’s not even funny,” Hayes, the Republican legislative candidate, said after meeting with local police chiefs and election officials. “If we get an answer within three weeks, I’ll be surprised.”
For details on each of these measures, which also reports that $630 million has been spent so far on them, see this story.
The first part of this story suggests the conflicts over GOP drop boxes in CA have now been resolved:
California officials lowered the temperature Friday in their legal standoff with the California Republican Party over its unauthorized ballot boxes, saying the party had committed to enough changes for now to satisfy their concerns. . . .
In an earlier response to Padilla, the California Republican Party said it would continue to accept mail ballots at boxes but promised some safeguards: The boxes will be attended to whenever the public has access to them, and ballots will be secured and then delivered to elections officials within the required 72-hour frame, the party said. The party pledged to not represent those boxes as “official,” saying a volunteer had done so in error, while arguing that the process was legal due to a 2018 law that loosened collection requirements.
“If they want to continue ballot collection activity, that is legal in California, but they must abide by state law around the ballot collection program,” Padilla said.
But later parts of the story also suggest the conflicts over this issue might not be fully settled.
Politico story on local-government ballot measures this fall to change policing systems:
Nevertheless, in Los Angeles, San Francisco, Portland, Philadelphia, Akron and Seattle, voters will get to decide on some pioneering changes to the way their policing systems work. These six cities aren’t the only places with police reform on the ballot, but they are the most notable for their scale, boldness or their locations, some of which have been in the spotlight throughout the summer for ongoing unrest. A few proposed changes are big, such as one proposal to shift millions of dollars away from law enforcement and to community services and programs in the most populous county in the country; others are smaller, such as a symbolic rejection of stop-and-frisk policing on the street. But like all ballot measures, if passed, these reforms might be just the beginning; they can provide a potential model for legislation later and elsewhere.
Some interesting data on several election-policy issues from a recent Ipsos poll for Axios:
What we’re watching: Most Black respondents (82%), Hispanic Americans (77%), Asian Americans (63%) and white respondents (59%) say the president should be elected nationally by popular vote rather than by the Electoral College.
- Two-thirds of all Americans say election day should be a national holiday.
- About eight in 10 voters overall support requiring photo ID to vote in person, slightly less — 73%— for Black respondents.
- Majorities of Black Americans (81%), white Americans (70%), Hispanic respondents (64%) and Asian Americans (63%) support restoring voting rights to convicted felons who have served their time.
- Only Black Americans (52%) favor allowing convicted felons who are still in prison to vote.
“New Jersey Election Officials Scramble on First Mostly Mail-In Vote”
From the WSJ:
New Jersey’s election system will be tested in the coming weeks as most voters will be casting their ballots for the presidential election by mail or dropping them off for the first time in the state’s history.
The state is one of four in the U.S. that this year opted to automatically mail ballots to voters to minimize in-person voting to limit the spread of the coronavirus. A handful of other states, including Utah and Oregon, already take the approach for every election.
Local election officials have begun delivering nearly six million ballots statewide to active registered voters, the most ever mailed in the state. More than 1.25 million ballots had been returned as of Thursday, according to the New Jersey Secretary of State’s office, or 32% of the total number who voted in the 2016 presidential election. . . .
County clerks and boards of elections have also been inundated with queries from voters asking why the election process changed this year or to inquire about the status of their ballots.
“Phones are ringing all day long with questions,” said John Hogan, the Bergen County clerk. . . .
Nicole DiRado, administrator for the Union County Board of Elections, said her office hired 50 seasonal workers for the election and was expecting to receive about 200,000 mail-in and drop-off ballots to count. That will shatter the county’s record for absentee ballots set in 2018 when it received 19,000 ballots, she said.
“I know at the end of the day we will have run a fair, transparent, successful election,” Ms. DiRado said. “I know that. It’s just getting there—honestly, it’s overwhelming.”